Complaint Procedure (With More “Fixes” to Come)
On June 29 – for the twenty-first straight year - - I will have the pleasure to share my expertise on handbooks at SHRM’s 2015 Annual Conference. Over the years, approximately 10,000 SHRM members have walked away with a new way of looking at their handbooks: “every word counts.”
Looking back on my Annual Conference programs, my greatest regret has been echoed in my speaker evaluations: too much material and too little time. In seventy-five minutes, attendees were given many “take aways” - - but I barely scratched the surface.
Until now.
Thanks to SHRM’s Department of Public Affairs, I’m going to have a monthly opportunity to blog, to take my time and to answer your questions. In addition, on August 5, I’m going to Twitter at #NextChat to talk to you in real time about your handbooks.
This month’s blog is a tease as to what’s to come on a monthly basis. Today, I will cover one of my favorite examples of “every word counts” and will give you a new sentence to fix a wording problem in your current handbook.
Going back to 1995, it wasn’t always the case; but today, every HR professional reading this blog has an anti-harassment handbook policy, which includes a complaint procedure with multiple portals of designated complaint recipients. These typically include: immediate supervisor, Department Head and Human Resources. Having the policy and complaint procedure is not only the right thing to do, but is also based on an amicus brief I submitted to the United States Supreme Court on behalf of SHRM. According to the Supreme Court, the harassment policy and complaint procedure provide employers an affirmative defense to harassment by a supervisor that does not culminate in a tangible employment action if the employee does not utilize the complaint procedure. All of you know of this as the Faragher affirmative defense, named after a lifeguard on the beaches in Boca Raton, Florida, located less than ten miles from my office.
Now, imagine this hypothetical: Mary, a file clerk, is sexually harassed by her immediate supervisor, John. Mary complains to John that she doesn’t like it and she wants him to stop. When he doesn’t stop and Mary cannot take it anymore, Mary files a sexual harassment charge with the EEOC and ultimately sues her employer.
Mary’s employer is confident that it will prevail in the lawsuit because of the Faragher affirmative defense: Mary did not complain to her Department Head or Human Resources. And, the employer will argue, the “complaint” to her immediate supervisor doesn’t count because he was the harasser.
It turns out, however, that Mary and John are not merely hypothetical. In their real case, Mary prevailed. The judge refused to apply the Faragher affirmative defense because Mary took reasonable steps to stop the harassment. By focusing on “every word” of the employer’s complaint procedure, the judge held that the immediate supervisor was a specifically designated compliant recipient - - regardless of his role as the harasser and the fact that complaining to him did not give the employer an opportunity (as an entity)
In short, Mary won because “every word counts.”
The quick fix to this result is to add the following sentence to your complaint procedure:
“Advising the offender that his or her behavior is unwelcome and/or requesting that it be discontinued shall not constitute a complaint under this procedure even if the offender is one of the designated representatives identified above.”
Hopefully, I’ll get to meet some of you in Las Vegas at my Mega Session in June. For those who can’t make it, we’ll be pen pals.
Next month, I’ll continue to focus on the words in your harassment policy and complaint procedure with more tips that will prove “every word counts.”
Allan H. Weitzman is a Florida Supreme Court Certified Circuit Court Mediator and Florida Bar Board Certified Labor and Employment Attorney – a combination of specialized certifications that are held by very few others. He is the Founder of Weitzman Arbitration & Mediation Services LLC.
Allan retired from the practice of law on October 31, 2017. Prior to his retirement, all of those 44+ years were at the Proskauer law firm, where Allan was first a summer associate, then an associate and ultimately a partner in Proskauer’ s Labor & Employment Law Department, where he also served as head of the labor and employment team in Proskauer’ s Boca Raton office for 23 years after his 21 years in Proskauer’ s New York Office. He also was co-head of the Disability, Accommodations & Leave Management Group, co-head of the Policies, Handbooks & Training Group and co-head of the Non-Compete and Trade Secrets Practice Group.
During his career, Allan’s practice was multifaceted. Much of the time he was either litigating in state or federal court at the trial and appellate levels. He also appeared before administrative agencies responsible for the enforcement of the numerous antidiscrimination laws and before the National Labor Relations Board. His experience includes negotiating collective bargaining agreements and arbitrating contract disputes. In addition, Allan provided valuable day-to-day and crisis advice to clients in a wide range of businesses and industries, including retailers, banks, office supply companies, insurance, securities, health care, investigators, lodging and gaming, restaurants, television networks, high end fashion design, maritime, charitable organizations, public utilities, sports and entertainment, beer distributors, not-for-profits, importers, manufacturing facilities, staffing companies, construction, aerospace, transportation, higher education, museums, technology, country clubs and airlines. On any given day, the scope of his practice included personnel policy planning, sexual harassment and avoiding litigation when terminating employees.
Corporations also called upon Allan when their former employees engaged in conduct that violated their non-compete agreements. In that regard, Allan took a case all the way to the Supreme Court of Florida and successfully argued that a successor employer can enforce a non-compete agreement signed with a former employer, even when the agreement does not contain a successors and assigns clause and where the employees have not consented to its assignment (Corporate Express Office Products, Inc. v. Phillips, 2003 WL 1883697 (Fla. April 17, 2003)).
On behalf of the Society for Human Resource Management (“SHRM”), Allan and his partner, Paul Salvatore, submitted the amicus brief to the U.S. Supreme Court in Faragher v. City of Boca Raton. The employer's “affirmative defense” that was adopted by the Supreme Court in Faragher was based on the argument made by Allan and Paul that employees who bypass an employer's internal complaint procedure should not benefit from a strict liability standard. Allan also co-authored SHRM's amicus brief in Chapman v. AI Transport, in which he successfully argued that an employer's subjective impressions could be used as valid criteria in its employment decisions. In 2004, Allan co-authored another Supreme Court amicus brief on behalf of SHRM. This time his arguments in the Suders case persuaded the Court to conclude that a constructive discharge was not necessarily a tangible employment action that would deprive an employer of the availability of the Faragher affirmative defense.
Allan was named three times by Best Lawyers as “Lawyer of the Year” in Labor Law - Management, Fort Lauderdale (2017), Employment Law - Management, Fort Lauderdale (2016) and Employment Law - Management, Miami (2013).
Allan has earned a first tier Chambers ranking for his outstanding employment law work every year since 2007, naming him “first-class” and a “notable practitioner” who is an “excellent advocate with strong ethics and an unrivalled understanding of business.” He was also described as “amazingly bright” and held out as “bringing the best of both worlds: legal acumen and superb business judgments.” “He gets to the point in the most efficient and effective manner – he has the highest professional standards.”
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